Thursday, January 14, 2016

Kessler on Ernst, Tushnet Replies

The Harvard Law Review has just published two essays on Daniel Ernst's Tocqueville's Nightmare: a long review, by Jeremy K. Kessler (Columbia University), and a response, by Mark Tushnet (Harvard Law School). Kessler has posted an abstract of his review, titled "The Struggle for Administrative Legitimacy":

It is telling that the winners of [Daniel] Ernst’s history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O’Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of “fair play” and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that “[a] dose of legal realism . . . has its place, but . . . respect for the governing rules is not optional.” Just as for Sunstein and Vermeule, the APA evacuated administrative law of “any kind of ideological valence,” for Ernst, the “rule of lawyers” insulated the administrative state from becoming a weapon in the hands of any particular social or economic group.

It apparently goes without saying — neither Ernst nor his protagonists say it — that the impartiality of the “rule of lawyers” admits one important exception. Under a “rule of lawyers,” the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville’s Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst’s ingenious history not only forces us to ask these questions, but also helps us answer them.